Exhibit 10(hh)
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AMENDED AND RESTATED
PURCHASE AGREEMENT
Among
LTV Steel Company, Inc.
LTV-▇▇▇▇▇▇▇▇▇, Inc.
MSC ▇▇▇▇▇▇▇▇▇ Coatings Inc.
and
Material Sciences Corporation
Dated as of April 23, 2002
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TABLE OF CONTENTS
ARTICLE I
Definitions ................................................................. 2
ARTICLE II
The Purchase ................................................................ 4
SECTION 2.01. Closing Date ........................................... 4
SECTION 2.02. The Transactions ....................................... 4
SECTION 2.03. Payment Mechanics ...................................... 5
SECTION 2.04. Excluded Liabilities ................................... 5
ARTICLE III
Representations and Warranties .............................................. 6
SECTION 3.01. Representations and Warranties of LTV Steel ............ 6
SECTION 3.02. Representations and Warranties of MSC .................. 7
ARTICLE IV
Covenants ................................................................... 7
SECTION 4.01. Cooperation and Commercially Reasonable Efforts ........ 7
SECTION 4.02. Notice of Certain Events ............................... 8
SECTION 4.03. Confidentiality ........................................ 8
SECTION 4.04. Expirations of Representations and Warranties .......... 9
ARTICLE V
Closing Conditions .......................................................... 9
SECTION 5.01. LTV Steel's and LTV-W's Conditions ..................... 9
SECTION 5.02. MSC's and MSCWC's Conditions ........................... 10
ARTICLE VI
Termination ................................................................. 11
SECTION 6.01. Termination ............................................ 11
SECTION 6.02. Effect of Termination .................................. 11
ARTICLE VII
Miscellaneous ............................................................... 12
SECTION 7.01. Expenses ............................................... 12
SECTION 7.02. Notices ................................................ 12
SECTION 7.03. Third Parties .......................................... 13
SECTION 7.04. Successors and Assigns ................................. 13
SECTION 7.05. Headings ............................................... 13
SECTION 7.06. Governing Law; Entire Agreement ........................ 13
SECTION 7.07. Incorporation of Exhibits .............................. 13
SECTION 7.08. Amendments and Waivers ................................. 13
SECTION 7.09. Counterparts ........................................... 14
Exhibits:
A. MSC Undertaking
B. Mutual Release
C. Sale Notice
D. Assignment of GP Interest
E. Assignment of LTV Steel Coating Agreement
F. Certificate of Executive Officer
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AMENDED AND RESTATED
PURCHASE AGREEMENT
AMENDED AND RESTATED PURCHASE AGREEMENT dated as of April 23, 2002
(this "Purchase Agreement") among LTV-▇▇▇▇▇▇▇▇▇, INC., a Delaware corporation
("LTV-W") and a subsidiary of The LTV Corporation, a Delaware corporation
("LTV"); LTV STEEL COMPANY, INC., a New Jersey corporation ("LTV Steel") and a
subsidiary of LTV; MSC ▇▇▇▇▇▇▇▇▇ COATINGS INC., a Delaware corporation (formerly
known as Pre Finish Metals ((EG) Incorporated) ("MSCWC") and a subsidiary of MSC
Pre Finish Metals Inc., an Illinois corporation (formerly known as Pre Finish
Metals Incorporated ("MSCPFM")) and a subsidiary of MATERIAL SCIENCES
CORPORATION, a Delaware corporation ("MSC"); and MSC.
W I T N E S S E T H :
WHEREAS, in 1984 EGL Steel Inc., a Delaware corporation ("EGL"),
Inland Steel Electrogalvanizing Corporation, a Delaware corporation ("Inland
EG"), and MSCWC organized a general partnership named ▇▇▇▇▇▇▇▇▇ Coatings, An
Illinois Partnership (the "Partnership") under the laws of the State of Illinois
for the purpose of owning and operating a facility designed primarily to coat
sheet steel with zinc or zinc alloys by an electroplating process and also
capable of coating sheet steel with Zincrometal (R) or other materials (the
"▇▇▇▇▇▇▇▇▇ Facility"); and
WHEREAS, pursuant to the Initial Transfer Agreement (as defined
herein) and the 1998 Transfer Agreement (as defined herein), EGL purchased
Inland EG's Partner's Interest (as that term is defined in Appendix A) in the
Partnership; and
WHEREAS, pursuant to the 1999 Transfer Agreement (as defined
herein), LTV-W purchased the GP Interest (as defined herein) from EGL and LTV
Steel purchased the Line Time Access (as defined herein); and
WHEREAS, LTV-W and LTV Steel have each commenced a case under the
Bankruptcy Code (as defined herein) before the Bankruptcy Court (as defined
herein); and
WHEREAS, LTV-W desires to sell to MSCWC all of its interests in the
Partnership, including without limitation the GP Interest, and LTV Steel desires
to sell to MSCWC all of its interests in the Partnership, including without
limitation the Line Time Access, and MSCWC desires to buy the same from LTV-W
and LTV Steel, in each case on the terms and conditions contained herein; and
WHEREAS, MSC desires to enter into this Purchase Agreement in order
to induce LTV-W and LTV Steel to enter into this Purchase Agreement; and
WHEREAS, the parties desire to amend and restate the Purchase
Agreement of the date hereof to clarify certain terms hereof for the benefit of
LTV and LTV-W;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
(a) As used herein, the following terms shall have the
following meanings:
"1998 Transfer Agreement" means the transfer agreement dated as of
June 30, 1998, among Inland, BSC, Inland EG, Ispat and EGL.
"1999 Transfer Agreement" means the Purchase Agreement dated as of
July 23, 1999, among EGL, BSC, LTV, LTV Steel, LTV-W, MSCWC, MSCPFM and MSC.
"Accounting Representatives" shall mean, in the case of LTV Steel
and LTV-W, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and in the case of MSCWC, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
"Affiliate" means, with respect to any person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person.
"Amended BSC Coating Agreement" means the Amended and Restated
Coating Agreement dated as of July 23, 1999 between BSC and the Partnership.
"Amended Operating Agreement" means the Amended and Restated
Operating Agreement dated as of July 23, 1999 between MSCWC and the Partnership.
"Amended Parent Agreement" means the Amended and Restated Parent
Agreement dated as of July 23, 1999 among BSC, LTV, MSCPFM and MSC.
"Amended Partnership Agreement" means the Amended and Restated
Partnership Agreement of the Partnership dated as of July 23, 1999 among EGL,
LTV-W and MSCWC.
"Appendix A" means Appendix A to the Definitive Agreements.
"Bankruptcy Code" means 11 U.S.C.(S)(S)101-1330.
"Bankruptcy Court" means the United States Bankruptcy Court,
Northern District of Ohio, Eastern Division.
"BSC" means Bethlehem Steel Corporation, a Delaware corporation and
the parent of EGL.
"Definitive Agreements" means the Amended Parent Agreement, the
Amended Partnership Agreement, the Amended BSC Coating Agreement, the LTV Steel
Coating Agreement, the MSCWC Coating Agreement, the Amended Operating Agreement,
together in each case with any and all changes therein or additions thereto
evidenced by letter agreements
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dated on or after July 23, 1999 or the minutes of the Management Committee of
the Partnership between July 23, 1999 and the date hereof.
"Initial Transfer Agreement" means the Transfer Agreement dated as
of May 29, 1991, among Ispat, Inland, Inland EG, BSC and EGL, as amended April
23, 1992, and June 5, 1992.
"Inland" means Inland Steel Company, a Delaware corporation (which
has been merged into Ispat).
"Interest" means the GP Interest together with the Line Time
Access.
"Ispat" means Ispat Inland Inc. (formerly known as Inland Steel
Industries, Inc.), a Delaware corporation.
"LTV Steel Coating Agreement" means the Coating Agreement dated as
of July 23, 1999 between LTV Steel and the Partnership.
"LTV Steel Transaction Documents" means this Purchase Agreement and
each of the Exhibits hereto to which LTV Steel and/or LTV-W is or is to be a
party.
"MSCWC Coating Agreement" means the Coating Agreement dated as of
July 23, 1999 between MSC and the Partnership.
"MSC Transaction Documents" means this Purchase Agreement and each
of the Exhibits hereto to which MSC and/or MSCWC is or is to be a party.
"Order" means, collectively, the order of the Bankruptcy Court
dated March 21, 2001, as amended by a stipulation and order entered on November
26, 2001, which relates to sales of assets for consideration not greater than $7
million.
"Person" means any natural person, firm, trust, partnership, joint
venture, unincorporated association, corporation, limited liability company,
government or governmental agency.
"Purchase Price" means the payment from MSCWC to LTV-W and LTV
Steel pursuant to Section 2.02(a).
"Purchase Price Adjustment" means the amount determined in
accordance with Section 2.02(b) used in the calculation of the Purchase Price.
"Scheduled Closing Date" means May 15, 2002.
"Settlement Payment" means the payment from LTV Steel to the
Partnership pursuant to Section 2.02(b).
"Transactions" means all transactions contemplated by this Purchase
Agreement.
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(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
---- -------
Closing 2.01
Closing Date 2.01
Confidential Information 4.03
EGL Recitals
GP Interest 2.02(a)
Inland EG Recitals
Liabilities 4.05(a)
Line Time Access 2.02(a)
LTV Caption
LTV Steel Caption
LTV Steel Indemnified Persons 4.05(b)
MSC Undertaking 2.02(a)
LTV-W Caption
MSC Caption
MSC Indemnified Persons 4.05(a)
MSCPFM Caption
MSCWC Caption
Partnership Recitals
▇▇▇▇▇▇▇▇▇ Facility Recitals
ARTICLE II
The Purchase
SECTION 2.01. Closing Date. The Transactions shall, subject to
the satisfaction or waiver of the conditions set forth in Article V hereof, be
consummated (the "Closing") at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ One Plaza, Chicago, Illinois on the Scheduled
Closing Date or at such other place or time as shall be agreed to by the parties
(the "Closing Date"), effective as of the opening of business, Chicago time, on
the Closing Date.
SECTION 2.02. The Transactions. Simultaneously on the Closing
Date:
(a) (i) MSCWC shall purchase from LTV-W and LTV-W shall sell to
MSCWC all of LTV-W's interests in the Partnership, including without limitation
a 16.5% general partner interest in the Partnership (including all rights with
respect thereto except as expressly otherwise provided herein (the "GP
Interest")), which GP Interest shall include a 16.5% Voting Interest (as defined
in Appendix A) and a 16.5% Financial Interest (as defined in Appendix A), and
(ii) LTV Steel shall assign to MSCWC, and MSCWC shall acquire from LTV Steel all
of LTV Steel's interests in the Partnership, including without limitation all of
LTV Steel's interest in the LTV Steel Coating Agreement (LTV Steel's interest
therein being referred to herein as the "Line Time Access"). In consideration
therefor, MSCWC (or MSC) shall pay to
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LTV Steel, on behalf of LTV Steel and LTV-W, in the aggregate, $3,137,252.00
less the amount of the Purchase Price Adjustment provided for in Section
2.02(b), on the Closing Date and MSC shall assume and agree to pay or otherwise
perform, or to cause one of its Affiliates to pay or otherwise perform, and
indemnify LTV Steel and/or LTV-W against, (i) the liabilities and obligations
described in Section 2.02(b) to the extent that they are taken into account in
determining the Purchase Price Adjustment, and (ii) any and all liabilities,
obligations, and commitments of LTV Steel and/or LTV-W under the Definitive
Agreements that arise or accrue with respect to any period beginning on or after
the Closing Date or arise out of events or circumstances occurring on or after
the Closing Date, whether absolute, contingent, known or unknown, disclosed or
undisclosed in this Purchase Agreement or otherwise (the "MSC Undertaking"). The
form of the MSC Undertaking is set forth in Exhibit A hereto.
(b) The "Purchase Price Adjustment" shall be equal to the sum of
$3,100 for each day in the period from and including April 1, 2002 to but
excluding the Closing Date, equal to the parties' estimate of the "Allocated
Fixed Costs" due during such period under Section 5.02 of the LTV Steel Coating
Agreement. LTV Steel does not intend to purchase any coating services from the
Partnership after the date hereof. The exact amount of the Purchase Price
Adjustment shall be determined by the Accounting Representatives of the parties
in good faith not less than two business days prior to the Closing.
(c) (i) LTV Steel and LTV-W and (ii) the Partnership shall
exchange mutual releases with respect to their respective obligations under the
Definitive Agreements in the form of Exhibit B hereto.
SECTION 2.03. Payment Mechanics. The payments referred to in
Section 2.02 shall be paid in cash (in United States dollars) by MSCWC by wire
transfer of immediately available funds to an account specified by LTV Steel in
a written notice to MSCWC delivered not less than five business days prior to
the Closing.
SECTION 2.04. Excluded Liabilities. Except as otherwise provided
in this Purchase Agreement or the Amended Partnership Agreement, MSCWC does not
assume or undertake to pay, perform, satisfy or discharge any liabilities,
obligations, agreements or commitments (i) of LTV, LTV Steel, LTV-W, EGL, BSC,
the Partnership, or any of their respective Affiliates or (ii) relating to the
operation of the Partnership, the use of the Line Time Access or to the
ownership of the GP Interest and arising or accrued with respect to the period
before the Closing Date or arising out of events or circumstances occurring or
existing prior to the Closing Date, whether due or to become due or whether
accrued, absolute, contingent, known or unknown, disclosed or undisclosed in
this Purchase Agreement or otherwise; it being understood, however, that the
"Purchase Price Adjustment" provided for in Section 2.02(b) hereof shall satisfy
and discharge all such liabilities, obligations and commitments of LTV Steel and
LTV-W and any of their Affiliates to the Partnership, MSCWC, MSC and any of
their Affiliates arising or accrued with respect to the period before the
Closing Date or arising out of events or circumstances occurring or existing
prior to the Closing Date in each case under the Definitive Agreements.
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ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of LTV Steel. LTV Steel
represents and warrants to MSC and MSCWC that:
(a) Corporate Existence and Power. Each of LTV Steel and LTV-W is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals, if
any, required to execute and deliver each of the LTV Steel Transaction Documents
to which it is or will be a party and, subject to compliance with the provisions
of the Order that are applicable to the Transactions, to perform its obligations
thereunder.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each of LTV Steel and LTV-W of this
Purchase Agreement are within the corporate powers of LTV Steel and/or LTV-W, as
the case may be, have been duly authorized by all necessary corporate action by
LTV Steel and LTV-W, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for such actions or filings (i)
which are required to comply with the provisions of the Order that are
applicable to the Transactions, (ii) which are required to effect the assumption
and assignment of the Amended Partnership Agreement and the LTV Steel Coating
Agreement, including all amendments thereto, and (iii) which, at the time of
execution of this Purchase Agreement, have already been taken or made or such
actions or filings the failure of which to take or make would not in the
aggregate have a material adverse effect on the transactions contemplated hereby
and thereby) and do not or will not, as the case may be, contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of LTV Steel or LTV-W, as
applicable, or of any material agreement, judgment, injunction, order, decree or
other instrument binding upon LTV Steel or LTV-W, as applicable, including,
without limitation, any loan agreement for debtor-in-possession financing for
LTV Steel or LTV-W.
(c) Title to Interest. LTV-W has valid title to the GP Interest being
sold to MSCWC pursuant to this Purchase Agreement, and LTV Steel has valid title
to the LTV Steel Coating Agreement being assigned to MSCWC pursuant to this
Purchase Agreement. Upon compliance with the procedures specified in the Order
that are applicable to the Transactions, the assumption of the Amended
Partnership Agreement by LTV-W and the LTV Steel Coating Agreement by LTV Steel,
including in each case all amendments thereto, LTV Steel and LTV-W will have the
right to transfer and assign all of their respective interests in the
Partnership, including without limitation the GP Interest and Line Time Access,
to MSCWC, in each case free and clear of all liens, charges and encumbrances.
(d) Binding Effect. Subject to compliance with the provisions of the
Order applicable to the Transactions, each of the LTV Transaction Documents,
when duly and validly executed by each of the other parties thereto, as
applicable, shall constitute a valid and binding agreement of LTV Steel and/or
LTV-W, as applicable.
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(e) Order in Effect. The Order has not been amended or modified and
it remains in full force and effect.
(f) Limitation. LTV Steel acknowledges that MSC makes no
representation or warranty with respect to the assets, liabilities, business,
operations, condition (financial or otherwise) or prospects of the Partnership.
SECTION 3.02. Representations and Warranties of MSC. MSC and MSCWC each
represents and warrants to LTV Steel and LTV-W that:
(a) Corporate Existence and Power. Each of MSCWC and MSC is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to execute and deliver each of the MSC Transaction Documents to which
it is or is to be a party and to perform its obligations thereunder.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each of MSCWC and MSC of each of the MSC
Transaction Documents to which it is or is to be a party are within the
corporate powers of MSCWC and/or MSC, as the case may be, have been duly
authorized by all necessary corporate action of MSC and/or MSCWC, require no
action by or in respect of, or filing with, any governmental body, agency or
official (except for such actions or filings which, at the time of execution of
this Purchase Agreement, have already been taken or made or such actions or
filings the failure of which to take or make would not in the aggregate have a
material adverse effect on the transactions contemplated hereby and thereby) and
do not or will not, as the case may be, contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate of
incorporation or by-laws (or other similar documents) of MSCWC or MSC, as
applicable, or of any material agreement, judgment, injunction, order, decree or
other instrument binding upon MSCWC or MSC, as applicable.
(c) Binding Effect. Each of the MSC Transaction Documents, when duly
and validly executed by each of the other parties thereto, shall constitute a
valid and binding agreement of MSCWC and/or MSC, as applicable.
(d) Limitation. MSC acknowledges that neither LTV Steel nor LTV-W
makes any representation or warranty with respect to the GP Interest (except as
provided in Section 3.01 hereof), their compliance or non-compliance with any of
the Definitive Agreements or the assets, liabilities, business, operations,
condition (financial or otherwise) or prospects of the Partnership.
ARTICLE IV
Covenants
SECTION 4.01. Cooperation and Commercially Reasonable Efforts. Subject to
the terms and conditions of this Purchase Agreement, each of MSC, MSCWC, LTV
Steel and LTV-W shall cooperate with one another in timely giving all notices,
making all
7
filings, seeking all regulatory clearances and obtaining all consents of third
parties, if any, necessary to consummate the Transactions, including without
limitation compliance by LTV Steel and LTV-W with all of the provisions of the
Order that are applicable to the Transactions, and agrees to execute and deliver
such other documents, certificates, agreements and other writings and shall use
commercially reasonable efforts to take, or cause to be taken, such other
actions and to do, or cause to be done, all things necessary or desirable in
order to satisfy the conditions set forth in Article V hereof and to consummate
the Transactions as soon as reasonably practicable, and in any event not later
than the Scheduled Closing Date. Without limiting the generality of the
foregoing, LTV Steel and LTV-W shall cause a "Sale Notice", as such term is
defined in the Order, relating to the Transactions in the form attached hereto
as Exhibit C to be sent by overnight delivery or telecopier to each of the
"Interested Parties", as such term is defined in the Order, promptly after the
execution and delivery of this Purchase Agreement. No other form of Sale Notice
with respect to the Transactions shall be used without the prior written consent
of MSC. Notwithstanding anything herein to the contrary, nothing contained
herein shall require any party to waive any of the conditions set forth in
Article V hereof.
SECTION 4.02. Notice of Certain Events. Each of the parties hereto shall
promptly notify the other parties hereto of:
(a) any notice or other communication from any Person, including
without limitation any "Interested Party", as defined in the Order, alleging
that the consent of such Person is or may be required in connection with the
consummation of any of the Transactions or otherwise asserting any objection to
any of the Transactions pursuant to the Order or otherwise;
(b) to the extent permitted by applicable law, any notice or other
communication from any governmental or regulatory agency or authority in
connection with the consummation of the Transactions;
(c) any notice of any breach or inaccuracy of any of the
representations and warranties made in this Purchase Agreement by any of the
parties hereto; or
(d) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge, threatened against, relating to or otherwise
affecting any party hereto that relate to the consummation of the Transactions.
SECTION 4.03. Confidentiality. From and after the date hereof, each of LTV
Steel and LTV-W and its Affiliates will hold, and will cause their respective
officers, directors, employees, accountants, counsel, consultants, advisors and
agents to hold, in confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of law, all confidential
documents and information concerning the Partnership except to the extent that
such information can be shown to have been (i) in the public domain through no
fault of LTV Steel or LTV-W, as the case may be, or their respective Affiliates
or (ii) later lawfully acquired on a nonconfidential basis by LTV Steel or
LTV-W, as the case may be, or their respective Affiliates. The obligation of LTV
Steel and LTV-W and their respective Affiliates to hold any such information in
confidence shall be satisfied if they exercise the same
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care with respect to such information as they would take to preserve the
confidentiality of their own similar information.
SECTION 4.04. Expirations of Representations and Warranties. All of the
respective representations and warranties of MSC and of LTV Steel set forth in
Article III hereof shall expire upon the completion of the Closing; provided,
however, that the representations of LTV Steel made pursuant to the certificate
required by Section 5.02(i) shall survive until the second anniversary of the
Closing Date.
ARTICLE V
Closing Conditions
SECTION 5.01. LTV Steel's and LTV-W's Conditions. Each of LTV Steel's and
LTV-W's obligations to take the actions contemplated by this Purchase Agreement
to be taken on the Closing Date are subject to the fulfillment, on or prior to
the Closing Date, of each of the following conditions, any or all of which may
be waived in whole or in part on or prior to the Closing Date by LTV Steel or
LTV-W:
(a) Representations and Warranties. The representations and
warranties of MSC contained in this Purchase Agreement shall be true in all
material respects on and as of the Closing Date as though such representations
and warranties were made on and as of such date.
(b) Covenants. Each of MSC and MSCWC shall have performed in all
material respects all of its obligations hereunder required to be performed by
it prior to or on the Closing Date.
(c) Receipt of Purchase Price. LTV Steel shall have received the full
amount of the Purchase Price in accordance with Sections 2.02(a) and 2.03.
(d) MSC Undertaking. MSC shall have executed and delivered to LTV
Steel the MSC Undertaking. The form of the MSC Undertaking is set forth in
Exhibit A hereto.
(e) Release. The Partnership shall have executed and delivered to LTV
Steel and to LTV-W a Mutual Release in the form of Exhibit B hereto.
(f) Governmental and Other Clearances. Either no objection to the
Transactions shall have been raised by any "Interested Person", as such term is
defined in the Order, or all such objections shall have been either waived or
withdrawn by the Interested Person or overruled by the Bankruptcy Court, and to
the extent required to permit the consummation of the Transactions, any and all
other material regulatory clearances shall have been obtained.
(g) Injunctions. No provision of any applicable law or regulation and
no judgment, injunction, order or decree shall prohibit or restrain the
consummation of the Transactions.
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(h) Receipt of Officer's Certificate. LTV Steel shall have received a
certificate from MSC and MSCWC, signed by the Accounting Representative of MSC
and MSCWC, certifying to the best of his actual knowledge as to those matters
addressed in paragraphs (a) and (b) of this Section 5.01; provided, however,
that such certificate may expressly refer to the expiration of, and other
limitations on, the representations and warranties of MSC provided for in
Sections 4.04 and 3.01(f) hereof.
SECTION 5.02. MSC's and MSCWC's Conditions. Each of MSC's and MSCWC's
obligations to take the actions contemplated by this Purchase Agreement to be
taken on the Closing Date are subject to the fulfillment, on or prior to the
Closing Date, of each of the following conditions, any or all of which may be
waived in whole or in part on or prior to the Closing Date by MSC or MSCWC:
(a) Representations and Warranties. The representations and
warranties of LTV Steel in this Purchase Agreement shall be true in all material
respects on and as of the Closing Date as though such representations and
warranties were made on and as of such date.
(b) Covenants. Each of LTV Steel and LTV-W shall have performed in
all material respects all of its obligations hereunder required to be performed
by it prior to or on the Closing Date.
(c) Release. LTV Steel and LTV-W shall have executed and delivered to
the Partnership a Release in the form of Exhibit B hereto.
(d) Assignment by LTV-W. LTV-W shall have assigned to MSCWC all of
its GP Interest in accordance with Section 2.02(a)(i). The form of such
assignment is set forth in Exhibit D hereto.
(e) Assignment by LTV Steel. LTV Steel shall have assigned to MSCWC
all of its interest in the Line Time Access in accordance with Section
2.02(a)(ii). The form of such assignment is set forth in Exhibit E hereto.
(f) Government Clearances. To the extent required by applicable law
or government regulations, all material regulatory clearances shall have been
obtained.
(g) Injunctions. No provision of any applicable law or regulation and
no judgment, injunction, order or decree shall prohibit or restrain the
consummation of the Transactions.
(h) Receipt of Officer's Certificate. MSC shall have received a
certificate from LTV Steel and LTV-W, signed by the Accounting Representative of
LTV Steel and LTV-W, certifying to the best of his actual knowledge as to those
matters addressed in paragraphs (a) and (b) of this Section 5.02; provided,
however, that such certificate may expressly refer to the expiration of, and
other limitations on, the representations and warranties of LTV Steel provided
for in Sections 4.04 and 3.02(d) hereof.
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(i) Compliance with Order. MSC shall have received a certificate
from LTV Steel, signed by an executive officer of LTV Steel and dated the
Closing Date, in the form set forth in Exhibit F hereto, that (i) the Order has
not been amended or modified and it remains in full force and effect; (ii) LTV
Steel and LTV-W have complied with all provisions of the Order that are
applicable to the Transactions, including, without limitation, the requirements
of the Order with respect to giving a Sale Notice to all Interested Parties;
(iii) either no objection to the Transactions has been filed by any Interested
Party or all objections that have been filed have been withdrawn or overruled by
the Bankruptcy Court (and to the best of his or her actual knowledge, no appeal
has been filed from any overruled objection); and (iv) no other order of the
Bankruptcy Court precludes the sale of the GP Interest and the Line Time Access
pursuant to the Order to MSCWC in accordance with the terms of this Purchase
Agreement.
ARTICLE VI
Termination
SECTION 6.01. Termination. This Purchase Agreement may be terminated
prior to the Closing Date:
(a) by the written agreement of all of the parties hereto;
(b) by any party if the Transactions shall not have been
consummated on or before the Scheduled Closing Date; provided that no party may
terminate this Purchase Agreement pursuant to this Section 6.01(b) if the
Transactions shall have been delayed due in whole or in material part to the
intentional, willful or grossly negligent breach in a material respect by such
party of any of its representations or warranties or the intentional, willful or
grossly negligent failure of such party to fulfill a condition to the
performance of the obligations of any other party or to perform a covenant of
this Purchase Agreement; or
(c) by any party if there shall be any law or regulation that
makes the consummation of the Transactions illegal or otherwise prohibited
(other than the Bankruptcy Code), or materially alters the Transactions, or if
consummation of the Transactions would violate any nonappealable final judgment,
injunction, order or decree of any court or governmental body having competent
jurisdiction.
The party or parties desiring to terminate this Purchase Agreement pursuant to
clauses (b) or (c) of this Section 6.01 shall give notice of such desire to
terminate to the other parties hereto.
SECTION 6.02. Effect of Termination. If this Purchase Agreement is
terminated as permitted by Section 6.01, such termination shall be without
liability of any party (or any shareholder, director, officer, employee, agent,
consultant or representative of such party) to any other party to this Purchase
Agreement. The provisions of Section 4.03 and Section 7.01 shall survive any
termination of this Purchase Agreement pursuant to Section 6.01 hereof.
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ARTICLE VII
Miscellaneous
SECTION 7.01. Expenses. Each of the parties hereto shall pay its own
expenses (including legal and accounting fees) incurred in connection with the
negotiation and execution of this Purchase Agreement and the documents to be
executed on the Closing Date and the consummation of the Transactions.
SECTION 7.02. Notices. All notices hereunder shall be in writing and
shall be personally delivered or sent via reputable overnight courier or
facsimile. Such notices shall be addressed respectively:
if to MSC or MSCWC, to:
Material Sciences Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of Chief Financial Officer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of ▇▇▇ ▇. ▇▇▇▇▇
Telecopier: 312-853-7036
if to LTV Steel or LTV-W, to:
LTV Steel Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of General Counsel
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, Day ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address or telecopier number as such party may hereafter
specify for the purpose of providing notice to the other parties. Each such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the telecopier number specified
in this Section 7.03 and the transmission of the appropriate number of pages is
confirmed or (ii) if given by any other means, when delivered at the address
specified in this Section.
SECTION 7.03. Third Parties. Nothing in this Purchase Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Purchase Agreement on any persons other than the parties
hereto and their respective successors and permitted assigns.
SECTION 7.04. Successors and Assigns. This Purchase Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns; provided that in no event shall any party
hereto be permitted to assign any of its obligations under this Purchase
Agreement to any other Person without the written consent of each other party
hereto.
SECTION 7.05. Headings. Headings are for ease of reference only and
shall not form a part of this Purchase Agreement.
SECTION 7.06. Governing Law; Entire Agreement.
(a) This Purchase Agreement shall be construed in accordance
with and governed by the law of the State of Illinois without giving effect to
the principles of conflicts of laws thereof which might cause the laws of any
other jurisdiction to govern this Purchase Agreement.
(b) This Purchase Agreement, the Exhibits hereto and the
documents referred to herein to be executed contemporaneously herewith on or
before the Closing embody the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior agreements
(including the letter of intent between MSC and LTV dated January 10, 2002) with
respect thereto.
SECTION 7.07. Incorporation of Exhibits. The Exhibits identified in
this Purchase Agreement are incorporated herein by reference and made a part
hereof.
SECTION 7.08. Amendments and Waivers.
(a) Any provision of this Purchase Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Purchase Agreement, or in the
case of a waiver, by the party against whom the waiver is to be effective.
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(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 7.09. Counterparts. This Purchase Agreement may be executed
in one or more counterparts, each of which shall be deemed an original and all
of which taken together shall constitute a single agreement. This Purchase
Agreement shall become a binding agreement when each party hereto shall have
received a counterpart hereof signed by each of the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be duly executed as of the day and year first above written.
LTV STEEL COMPANY, INC.
by
/s/ N. ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
Name: N. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LTV-▇▇▇▇▇▇▇▇▇, INC.
by
/s/ N. ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
Name: N. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
MSC ▇▇▇▇▇▇▇▇▇ COATINGS INC.
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: CFO
MATERIAL SCIENCES CORPORATION
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: CFO
15